Anthony Terrell Clifton v. the State of Texas

Opinion issued August 24, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00641-CR
———————————
ANTHONY TERRELL CLIFTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1633925
MEMORANDUM OPINION
A jury convicted Appellant Anthony Terrell Clifton of the offense of
aggravated assault of a family member and the trial court assessed his punishment
at fourteen-years’ incarceration. Appellant raises nine issues on appeal. He argues
(1) the trial court lacked jurisdiction because the grand jury did not present the
indictment to the district court that empaneled the grand jury, (2) Sections
54A.006(d) and 54A.008(a)(15) of the Texas Government Code allowing associate
judges to preside over voir dire proceedings, violate Article V, Section 7 of the Texas
Constitution, (3–4) the trial court abused its discretion by barring him from asserting
his rights under the Sixth Amendment’s Confrontation Clause based on the doctrine
of forfeiture by wrongdoing and by admitting out-of-court statements from a witness
who was not available to be cross-examined, (5) the trial court’s oral admonishments
regarding his inability to possess firearms based on a felony conviction did not
comply with the requirements of Section 176.1 of the Texas Administrative Code,
(6) the trial court improperly admonished him that, as a convicted felon, he could no
longer possess ammunition, (7) the trial court erred in assessing court costs not
authorized by statute, (8) the trial court erred by failing to inquire on the record about
his ability to pay fines and court costs, and (9) the judgment contains five
“deficiencies” that require the case be remanded to the trial court for “clarification.”
We affirm Appellant’s conviction and sentence, but we remand the case to the
trial court for a correct assessment of court costs.
Background
On June 3, 2019, Jerika Sanders (“Sanders”) called 9-1-1 for emergency
assistance after she was involved in an altercation with her boyfriend, Appellant
Anthony Terrell Clifton (“Clifton”). Sanders told the dispatcher, “My boyfriend
2
tortured me and locked me in the house and beat me up. I am bleeding. I need an
ambulance.” “He used a pole to beat me and a glass to stab me.” Sanders identified
Clifton as her assailant. The paramedics who arrived at the scene treated Sanders
and transported her to the hospital.
Sanders described the assault to the paramedics, and she made recorded
statements to Deputy Norman Fitts, an investigator with the Harris County Sheriff’s
Office, and prosecutors with the Harris County District Attorney’s Office assigned
to Clifton’s case. According to Sanders, Clifton assaulted her in their apartment for
two-and-a-half to three hours before she was able to call 9-1-1. Clifton slapped
Sanders, punched her in the face, and beat her with a belt. At one point during the
lengthy ordeal, Clifton grabbed a wine glass out of Sanders’ hand, and he struck her
face and head with the glass until it broke. Clifton then stabbed Sanders’ face and
hand with the broken wine glass. He also beat Sanders with a bathroom towel rack
and a pole he found in the apartment.
Photographs taken of Sanders after the assault show the extent of Sanders’
injuries. Sanders had dried blood on her face, forehead, and arms, puncture wounds
on her head, hands, arms, and legs, and welts on her shoulders and legs. Her left eye
3
was swollen shut and her lips were swollen. The cuts under Sanders’ left eye, upper
lip, and forehead required sutures.1
Procedural Background
The State filed a complaint alleging Clifton had committed the offense of
aggravated assault of a family member by “unlawfully, intentionally and knowingly
caus[ing] bodily injury to Jerika Sanders, hereafter styled the Complainant, a person
with whom [Clifton] had a dating relationship, by stabbing [Sanders], and [Clifton]
used and exhibited a deadly weapon, namely, the sharp end of broken wine glass
stem, during the commission of the offense.” The State filed the complaint in the
178th District Court of Harris County (the “178th Trial Court”). A grand jury,
empaneled by the 176th District Court of Harris County, returned a true bill of
indictment concerning the conduct alleged in the complaint (the “176th District
Court”). The indictment, which charged Clifton with committing the offense of
aggravated assault of a family member, was delivered to the Harris County District
Clerk and filed in the 178th Trial Court. The indictment was issued by “[t]he duly
organized Grand Jury of Harris County, Texas” and signed by the “Foreman of the
Grand Jury” for the 176th District Court. Clifton did not object to the indictment.
1
State Exhibits 14, 15, 16, 23, 24, 25, 48, 49, and 50 are photographs depicting
Sanders’ injuries.
4
Except for the grand jury proceedings in the 176th District Court, all
proceedings in Clifton’s case were conducted in the 178th Trial Court. The associate
judge of the 178th Trial Court presided over voir dire proceedings and the district
court judge of the 178th Trial Court presided over the remainder of Clifton’s trial.
On August 25, 2022, the day Clifton’s trial was scheduled to begin, the State
filed a motion requesting that the court find Clifton had “forfeited his Sixth
Amendment right to confrontation with regard to the statements of Jerika Sanders,”
based on the doctrine of forfeiture by wrongdoing.2 The State alleged that Clifton
“dissuaded [Sanders] from participating in the criminal prosecution of this case.”
The State argued, among other things:
[Clifton] repeatedly directed family members to contact [Sanders] from
jail after he was arrested in 2019 and has continued to direct family
members to contact [Sanders] to ensure she does not show up for trial
as recently as the evening of 8/24/2022.
Throughout three years since [Clifton] stabbed [Sanders], despite a no
contact order, he has continued to contact [Sanders] for the purpose of
ensuring she does not show up to trial.
While on bond, [Clifton] contacted [Sanders] and attempted to persuade
her to get back into a relationship with him.
...
2
The doctrine of forfeiture by wrongdoing bars defendants from asserting their Sixth
Amendment rights to confront their accusers or complain about hearsay when a
defendant wrongfully procures a witness’s unavailability. See Colone v. State, 573
S.W.3d 249, 264–65 (Tex. Crim. App. 2019); see also TEX. CODE CRIM. PROC. art.
38.49 (codifying doctrine of forfeiture by wrongdoing).
5
[Clifton] told his mother [Viola Clifton] to contact [Sanders] and make
sure she is not coming to court, because if she does not come, he
believes the case will be dismissed.
On August 18, 2022 [Sanders] was subpoenaed to come to court,
acknowledged the subpoena, and was cooperative.
On August 19, 2022 [Sanders] was cooperative and discussing travel
arrangements with the victim advocate coordinator.
On August 20, 2022 Prosecutors met with [Sanders] over a zoom call,
[Sanders] was cooperative, discussed courtroom attire, reviewed
photos, and shared what happened to her on June 3, 2019.
On August 21, 2022 after repeatedly telling his mother to call [Sanders]
to make sure she was not coming to court, [Clifton’s] mother reported
that she told [Sanders] she did not have to come, and bribed [Sanders]
with 2,000 dollars of baby clothes.
As of August 22, 2022 [Sanders] did not respond to the State again.
August 24, 2022 [Clifton’s] mother affirms that [Sanders] received the
2,000 dollars of baby clothes, and that [Sanders] is not coming to trial.
[Sanders] said she fears [Clifton’s] family. [Sanders] knows of the court
setting, but she refuses to testify.
The State requested a hearing on its motion and asked the court to “admit through
the doctrine of forfeiture by wrongdoing” (1) Sanders’ “statement to detectives at
the hospital,” (2) Sanders’ “statement in a witness meeting on 8/20/22,” and (3) “Jail
calls made” by Clifton.
The trial court conducted an Article 38.49 hearing outside the jury’s presence
to determine whether the forfeiture by wrongdoing doctrine applied to Sanders’ out-
6
of-court statements rendering them admissible.3 At the hearing, the State offered as
evidence recordings of several phone calls Clifton made from jail, as well as a
transcript of relevant sections of the calls. The State also called four witnesses:
Sergeant Mark Schmidt, Investigator Bilsen Espinosa, Deputy Norman Fitts, and
Caseworker Maria Bahena.4
Based on Clifton’s phone calls and evidence that Sanders had been
cooperative with the State until Clifton’s mother bribed her with $2,000 worth of
baby clothes to not testify at Clifton’s trial, the trial court found by a preponderance
of the evidence that Clifton acted with the intent to procure Sanders’ absence at trial,
and he thus forfeited his Sixth Amendment right to confront Sanders or object to the
admission of Sanders’ out-of-court statements as hearsay.
Clifton’s trial began the next day. Clifton pleaded not guilty. When Sanders
failed to appear for trial, the State admitted several of her out-of-court statements,
including a report prepared by the Community Volunteer Fire Department
containing statements Sanders gave to a paramedic describing the assault (State
3
Article 38.49(c) requires the trial court to conduct a hearing outside of the jury’s
presence to determine “whether forfeiture by wrongdoing occurred by a
preponderance of the evidence.” TEX. CODE CRIM. PROC. art. 38.49(c).
4
We address the evidence and testimony presented at the hearing in more detail later
in this opinion.
7
Exhibit 55), and Sanders’ hospital records containing statements she made
describing the assault and identifying Clifton as her assailant (State Exhibit 56).5
The jury convicted Clifton of the offense of aggravated assault of a family
member. The trial court assessed his punishment at fourteen-years’ incarceration.
This appeal followed.
Trial Court’s Jurisdiction
In his first issue, Clifton argues that the judgment of conviction is void
because the 178th Trial Court never acquired jurisdiction over his case. According
to Clifton, Article 21.02(2) of the Texas Code of Criminal Procedure requires a grand
jury to present its indictment to the same district court that empaneled the grand jury.
See TEX. CODE CRIM. PROC. art. 21.02(2). Clifton argues that the grand jury failed
to comply with Article 21.02(2) because, instead of presenting the indictment against
Clifton to the 176th District Court—the court that empaneled the grand jury—the
grand jury presented the indictment to the 178th Trial Court. According to Clifton,
the grand jury’s failure to comply with Article 21.02(2) renders the indictment
against him a nullity. Thus, he argues it could not have conferred jurisdiction upon
any court.
5
The trial court also admitted four of Clifton’s jail calls as State Exhibit 57. State
Exhibit 57 includes the January 24, 2022 call (State Exhibit 4), the January 26, 2022
call (State Exhibit 4), the August 19, 2022 call (State Exhibit 5), and the August 21,
2022 call (State Exhibit 6).
8
The State argues that Clifton’s argument has been rejected multiple times by
this Court and the Fourteenth Court of Appeals. See Allen v. State, 570 S.W.3d 795,
799–802 (Tex. App.—Houston [1st Dist.] 2018), aff’d, 614 S.W.3d 736 (Tex. Crim.
App. 2019); Johnson v. State, 562 S.W.3d 168, 172–74 (Tex. App.—Houston [14th
Dist.] 2018, pet. ref’d). Relying on Allen v. State from this Court and Johnson v.
State from our sister court, the State argues the grand jury satisfied the presentment
requirement in Article 21.02(2) because it presented the indictment to the Harris
County District Clerk, the court clerk for all Harris County district courts.
In his reply brief, Clifton argues that (1) presentment of an indictment to a
district clerk does not satisfy the requirement in Article 21.02(2) that the indictment
be presented to the district court that empaneled the grand jury, (2) there is no
evidence the indictment was presented to the empaneling court as required by Article
21.02(2), (3) the presentment of an indictment to one district court does not vest
jurisdiction in all district courts in the same county, and (4) Allen and Johnson are
inapposite because they do not address the requirement in Article 21.02(2) that an
indictment must be “presented in the district court of the county where the grand
jury is in session” and both opinions are inconsistent with the requirements in Article
21.02(2).
9
A. Standard of Review
A defendant may challenge the trial court’s jurisdiction for the first time on
appeal. See State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009). “A trial
court’s jurisdiction over a criminal case consists of the power of the court over the
‘subject matter’ of the case, coupled with ‘personal’ jurisdiction over the accused.”
Jenkins v. State, 592 S.W.3d 894, 898 (Tex. Crim. App. 2018) (quoting Dunbar, 297
S.W.3d at 780). “The presentment of a valid indictment vests the district court with
jurisdiction of the cause.” Id. (citing TEX. CONST. art. V, § 12(b)). Whether an
indictment is sufficient to confer jurisdiction presents a question of law, which we
determine de novo. Leone v. State, 508 S.W.3d 346, 347 (Tex. App.—Fort Worth
2014, pet. ref’d).
A void judgment in a criminal case is a “nullity” and that may be attacked at
any time. Nix v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001). Void
judgments, which are “very rare,” occur when, among other things, the indictment
“does not satisfy the constitutional requisites of a charging instrument,” and thus
deprives the trial court of jurisdiction over the defendant. Id. at 668. Whether a
judgment is void is a question of law, which we determine de novo. See BMC
Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
10
B. Applicable Law
Article 5, Section 12(b) of the Texas Constitution states:
An indictment is a written instrument presented to a court by a grand
jury charging a person with the commission of an offense. An
information is a written instrument presented to a court by an attorney
for the State charging a person with the commission of an offense. The
practice and procedures relating to the use of indictments and
informations, including their contents, amendment, sufficiency, and
requisites, are as provided by law. The presentment of an indictment
or information to a court invests the court with jurisdiction of the cause.
TEX. CONST. art. V, § 12(b). A defective indictment may still vest a court with
jurisdiction so long as the indictment meets the constitutional definition of an
indictment. Jenkins, 592 S.W.3d at 898. A written document meets the definition
of indictment under the Texas Constitution if it charges a person with the
commission of an offense. Id. (“To meet the definition of indictment under article
V, section 12(b) of the Texas Constitution and to vest the court with both personal
and subject matter jurisdiction, the indictment must (1) charge a person, and it must
(2) charge the commission of an offense.”); see also TEX. CONST. art. V, § 12(b)
(“An indictment is a written instrument presented to a court by a grand jury charging
a person with the commission of an offense.”).
Article 21.02 of the Texas Code of Criminal Procedure sets forth the legal
requirements for an indictment. TEX. CODE CRIM. PROC. art. 21.02. It states that
“[a]n indictment shall be deemed sufficient” if it meets nine listed requisites. Id.
Under requisite number 2, “[i]t must appear that the [indictment] was presented in
11
the district court of the county where the grand jury is in session.” Id. 21.02(2). A
grand jury presents an indictment to a court by “deliver[ing] the indictment to the
judge or court clerk.” TEX. CODE CRIM. PROC. art. 20A.303.
C. Presentment of Indictments in Harris County
The Texas Code of Criminal Procedure governs grand jury proceedings in
Texas. See Allen, 570 S.W.3d at 799; see also TEX. CODE CRIM. PROC. arts.
20A.001–.304. A district court forms and impanels a grand jury and empowers it to
inquire into indictable offenses. See Allen, 570 S.W.3d at 799; TEX. CODE CRIM.
PROC. art. 20A.051 (“The grand jury shall inquire into all offenses subject to
indictment of which any grand juror may have knowledge or of which the grand jury
is informed by the attorney representing the state or by any other credible person.”).
After hearing testimony, the grand jury votes on the presentment of an
indictment and if “at least nine grand jurors concur in finding the bill,” the State will
prepare the indictment and deliver it to the grand jury foreman. See TEX. CODE
CRIM. PROC. arts. 20A.301–.302; Allen, 570 S.W.3d at 799. “When an indictment
is ready to be presented, the grand jury shall, through the foreperson, deliver the
indictment to the judge or court clerk.” TEX. CODE CRIM. PROC. art. 20A.303. An
indictment is considered presented “when it has been duly acted upon by the grand
jury and received by the court.” Id. art. 12.06. Presentment occurs “when an
indictment is delivered to either the judge or the clerk of the court.” Allen, 570
12
S.W.3d at 799. “The presentment of a valid indictment vests the district court with
jurisdiction of the cause.” Jenkins, 592 S.W.3d at 898 (citing TEX. CONST. art. V, §
12(b)).
Criminal district courts within the same county have original jurisdiction over
all felony criminal cases in that county. See Allen, 570 S.W.3d at 800; see also TEX.
CODE CRIM. PROC. art. 4.05; TEX. GOV’T CODE § 74.094. In Harris County, Texas,
the criminal district courts share the same clerk. Allen, 570 S.W.3d at 800;
Henderson v. State, 526 S.W.3d 818, 820 (Tex. App.—Houston [1st Dist.] 2017,
pet. ref’d).
Article V, Section 11 of the Texas Constitution states in part that “District
Judges may exchange districts, or hold courts for each other when they may deem it
expedient, and shall do so when required by law.” TEX. CONST. art. V, § 11; see
generally In re State ex rel. Wice, 668 S.W.3d 662, 675 (Tex. Crim. App. 2023)
(reaffirming that this broad grant of authority bestows flexibility upon district court
judges). It is well-settled that Article V, Section 11, and the sections of the Texas
Government Code that accomplish its constitutional directive, give district court
judges in multicourt counties, including Harris County, flexibility to adopt local
rules governing the courts’ administration of cases. See TEX. GOV’T CODE § 24.024
(stating district courts “may adopt rules governing the filing and numbering of cases,
the assignment of cases for trial, and the distribution of the work of the courts as in
13
their discretion they consider necessary or desirable for the orderly dispatch of the
business of the courts”); TEX. GOV’T CODE § 74.093(a)–(b)(1) (requiring district
court judges in multicourt counties to adopt local rules of administration governing
“assignment, docketing, transfer, and hearing of all cases, subject to jurisdictional
limitations of the district courts and statutory county courts”); see also Davis v. State,
519 S.W.3d 251, 255 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (citing TEX.
CONST. art. V, § 11; TEX. GOV’T CODE §§ 24.003, 24.024, 74.093–094) (observing
grant of “intra-county flexibility” to district court judges in multicourt counties).6
Thus, in multicourt counties, like Harris County, a case may be assigned to a district
court other than the court that empaneled the grand jury, pursuant to local rules. See
Allen, 570 S.W.3d at 800; see also Davis, 519 S.W.3d at 255 (“If a grand jury in one
district court returns an indictment in a case, the case nevertheless may be then
assigned to any district court within the same county.”); Tamez v. State, 27 S.W.3d
668, 670 n.1 (Tex. App.—Waco 2000, pet. ref’d) (noting that “the judges of the
Harris County district courts exercising criminal jurisdiction have adopted a
procedure by which indictments are filed in each court on a rotating basis without
reference to the court which empaneled the grand jury presenting the indictments”).
6
Clifton is not challenging Texas Government Code Sections 24.003, 24.024, 74.093,
or 74.094.
14
D. Analysis
Clifton argues that his judgment of conviction is void because the grand jury
presented the indictment against him to the 178th Trial Court, instead of the
empaneling 176th District Court in violation of Article 21.02(2). According to
Clifton, Article V, Section 12(b) of the Texas Constitution incorporates by reference
all “current statutes concerning indictments and informations,” including Article
21.02(2) of the Texas Code of Criminal Procedure, and thus the requirements of
Article 21.02(2) are constitutional in nature, not statutory. Clifton argues that an
indictment that runs afoul of Article 21.02 is a nullity that cannot vest jurisdiction in
any court. And because this is a jurisdictional issue, he may raise the issue for the
first time on appeal. See Dunbar, 297 S.W.3d at 780.7
In Allen, Johnson, and at least a dozen other opinions relied upon or cited by
the State, this Court and the Fourteenth Court of Appeals consistently have held that
a criminal district court in Harris County is not deprived of jurisdiction over a
defendant when it receives presentment of an indictment from a grand jury
impaneled by another criminal district court in the same county. The same opinions
hold that the same arguments Clifton raises in his first issue are non-jurisdictional
procedural challenges to irregularities that a defendant may not raise for the first
7
Clifton concedes he is not arguing there is a procedural deficiency with the
indictment.
15
time on appeal. See Allen, 570 S.W.3d at 801 (rejecting argument trial court lacked
jurisdiction because indictment was presented by grand jury empaneled by different
Harris County criminal district court and holding defendant’s arguments “raise[d] a
procedural issue related to his indictment”); Johnson, 562 S.W.3d at 174 (rejecting
argument trial court lacked jurisdiction over his case because grand jury impaneled
by different district court presented indictment to trial court, and holding that “[a]t
best, appellant’s arguments present a non-jurisdictional, procedural issue related to
appellant’s indictment”); see generally Tamez, 27 S.W.3d at 671 (“Settled case law
establishes that a defendant may not complain for the first time on appeal that he has
been tried and convicted in a court other than the one to which the indictment was
returned.”).8
8
Although the State relies primarily on Allen, we have reached the same result in
several other opinions. See Henderson v. State, 526 S.W.3d 818, 819–21 (Tex.
App.—Houston [1st Dist.] 2017, pet. ref’d) (rejecting argument trial court never
acquired jurisdiction over Henderson because grand jury from another Harris
County district court presented indictment to trial court and holding there was no
jurisdictional defect because indictment charged “a person” with commission of
offense and there was evidence indictment was presented to Harris County District
Clerk and trial court); Davis v. State, 519 S.W.3d 251, 254 (Tex. App.—Houston
[1st Dist.] 2017, pet. ref’d) (rejecting argument trial court lacked jurisdiction over
defendant, and thus judgment of conviction was void, because grand jury of
different Harris County district court presented indictment to trial court, instead of
court that empaneled grand jury); see also Gutierrez v. State, No. 01-18-00624-CR,
2020 WL 237935, at *1–3 (Tex. App.—Houston [1st Dist.] Jan. 16, 2020, pet. ref’d)
(mem. op., not designated for publication) (holding trial court had jurisdiction over
defendant when “underlying indictment was presented to the district clerk by the
grand jury empaneled by the 178th District Court of Harris County, Texas” and
rejecting argument that “text of the Texas Constitution and Texas Code of Criminal
16
Procedure contemplate that grand juries may return indictments only to the court
that impaneled them”); Payne v. State, No. 01-16-00977-CR, 2018 WL 4190047, at
*3 (Tex. App.—Houston [1st Dist.] Aug. 31, 2018, pet. ref’d) (mem. op., not
designated for publication) (relying on Henderson and Davis and overruling
argument trial court lacked jurisdiction because grand jury of different Harris
County district court presented indictment to trial court because “relevant facts of
this case do not differ materially from the relevant facts in Henderson and Davis”);
Shepherd v. State, No. 01-16-00748-CR, 2017 WL 2813165, at *1 (Tex. App.—
Houston [1st Dist.] June 29, 2017, pet. ref’d) (mem. op., not designated for
publication) (holding argument trial court was not vested with jurisdiction because
grand jury of another district court in Harris County presented indictment was “not
a jurisdictional matter, Appellant’s failure to challenge the indictment or the
proceedings in the trial court constitutes a waiver of his right to challenge any
procedural irregularity”); Hernandez v. State, No. 01-15-00837-CR, 2017 WL
1416877, at *2 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, pet. ref’d) (mem.
op., not designated for publication) (holding argument trial court lacked jurisdiction
because grand jury of different Harris County district court presented indictment
could not be raised for first time on appeal and “Hernandez’s failure to challenge
the indictment or the proceedings in the 263rd District Court prior to trial constitutes
a waiver of his right to challenge any procedural irregularity”).
Although Johnson is the primary authority the States cites from the
Fourteenth Court of Appeals, that court too reached the same result in several other
opinions. See Saldivar v. State, 542 S.W.3d 43, 46 (Tex. App.—Houston [14th
Dist.] 2017, pet. ref’d) (rejecting argument trial court lacked jurisdiction to
adjudicate appellant’s case because indictment was returned from grand jury
impaneled by different district court and holding trial court was vested with
jurisdiction when indictment returned by grand jury in different Harris County
district court was presented to Harris County District Clerk and filed with trial
court); Matthews v. State, 530 S.W.3d 744, 746–47 (Tex. App.—Houston [14th
Dist.] 2017, pet. ref’d) (holding no jurisdictional defect because indictment was
“written instrument presented to a court by a grand jury charging a person with the
commission of an offense” and trial court was vested with jurisdiction after being
presented with indictment returned by grand jury in different Harris County district
court and filed with Harris County District Clerk); see also Rodriguez v. State, No.
14-16-00968-CR, 2018 WL 542239, at *2 (Tex. App.—Houston [14th Dist.] Jan.
25, 2018, no pet.) (mem. op., not designated for publication) (holding trial court had
jurisdiction because indictment from different Harris County district court was
presented to Harris County District Clerk and filed in trial court); Quoc Nguyen v.
State, No. 14-17-00090-CR, 2017 WL 6329881, at *1 (Tex. App.—Houston [14th
Dist.] Dec. 12, 2017, pet. ref’d) (mem. op., not designated for publication) (holding
trial court was vested with jurisdiction when indictment presented to Harris County
17
In Allen, the defendant argued the trial court lacked jurisdiction over his
criminal case because the indictment was presented to the trial court by a grand jury
empaneled by a different Harris County criminal district court. Allen, 570 S.W.3d
at 799. According to the defendant, “a grand jury impaneled by one trial court cannot
present an indictment to a different trial court because a grand jury serves one
particular court.” Id. at 801. Rejecting this argument, this Court explained that
district court judges in multicourt counties, like Harris County, are allowed to adopt
local rules governing “the assignment of cases for trial” and “distribution of the work
of the courts.” Id. at 800 (quoting TEX. GOV’T CODE § 24.024); see also TEX. GOV’T
CODE § 74.093 (stating local rules of administration may provide, in part, for
assignment, docketing, transfer, and hearing of cases). Thus, in multicourt counties,
“one court may impanel a grand jury, and if an indictment is presented, the case may
District Clerk and trial court and empaneling court were Harris County district
courts and “overrul[ing] for the reasons stated in Saldivar and Matthews”); Conway
v. State, No. 14-17-00060-CR, 2017 WL 5472642, at *1–2 (Tex. App.—Houston
[14th Dist.] Nov. 14, 2017, no pet.) (mem. op., not designated for publication)
(holding no jurisdictional defect when indictment returned by grand jury for
different Harris County district court was presented to Harris County District Clerk
and filed with trial court); Aguillon v. State, No. 14-17-00002-CR, 2017 WL
3045797, at *1–3 (Tex. App.—Houston [14th Dist.] July 18, 2017, pet. ref’d)
(holding trial court had jurisdiction over defendant’s case when amended indictment
of grand jury from different court was presented to District Clerk and “refile[d]” in
trial court, which had “first-filed related case;” stating “indictment’s return to [trial
court] conferred that court’s jurisdiction over the indictment, since all state district
courts located within one county have proper jurisdiction to decide the same cases;”
rejecting argument trial court was divested of jurisdiction when presented with
indictment prepared by grand jury impaneled by different district court; holding
record failed to demonstrate jurisdiction defect).
18
be filed in another court of competent jurisdiction within the same county.” Allen,
570 S.W.3d at 800.
The Allen court similarly held that the trial court “was properly vested with
jurisdiction over Allen.” Id. at 801. In support of its holding, this Court observed
that the trial court and empaneling court were both Harris County criminal district
courts, and thus both courts had the same subject matter jurisdiction and the same
district clerk. Id. at 800. This Court also relied on that the fact the State filed the
complaint against Allen in the trial court, the empaneling court’s grand jury
“returned a true bill of indictment concerning” the conduct alleged in the complaint,
the “indictment was presented to the Harris County District Clerk, as demonstrated
by the clerk’s original file stamp,” and it was filed in the trial court. Id.; see also
Shepherd v. State, No. 01-16-00748-CR, 2017 WL 2813165, at *1 (Tex. App.—
Houston [1st Dist.] June 29, 2017, pet. ref’d) (mem. op., not designated for
publication) (“After the grand jury votes concerning presentment of an indictment,
the State can file in any court that has jurisdiction over the case.”); TEX. CODE CRIM.
PROC. art. 4.16 (“When two or more courts have concurrent jurisdiction of any
criminal offense, the court in which an indictment or a complaint shall first be filed
shall retain jurisdiction . . . .”). This Court held the evidence “the grand jury foreman
signed the indictment, the trial court directed the State to read the indictment to Allen
in open court pretrial, and [the trial court] accepted Allen’s plea of ‘not guilty,’” was
19
“additional evidence that the indictment was acted upon by the grand jury and
presented to, or received by,” the trial court. Allen, 570 S.W.3d at 801; see also TEX.
CODE CRIM. PROC. art. 12.06 (stating presentment occurs when indictment “has been
duly acted upon by the grand jury and received by the court”).
The Allen court further held that the defendant’s argument that “a grand jury
impaneled by one trial court cannot present an indictment to a different trial court
because a grand jury serves one particular court,” had been “expressly rejected” by
this Court “on at least four previous occasions” and by the Fourteenth Court of
Appeals. Allen, 570 S.W.3d at 801 (citing Henderson, 526 S.W.3d at 819–21;
Shepherd, 2017 WL 2813165, at *1; Hernandez v. State, No. 01-15-00837-CR, 2017
WL 1416877, at *2 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017, pet. ref’d) (mem.
op., not designated for publication); and Davis, 519 S.W.3d at 254–56). “We have
repeatedly held that a trial court is not deprived of jurisdiction over a criminal
defendant in these circumstances.” Id.The Allen court also observed that the defendant’s arguments “raise[d] a
procedural issue related to his indictment,” and the defendant’s “failure to object to
the indictment or the proceedings in the trial court . . . waive[d] . . . his right to
challenge any procedural irregularity related to his indictment on appeal.” Id. at
801–02 (citing Henderson, 526 S.W.3d at 821; Shepherd, 2017 WL 2813165, at *1;
Hernandez, 2017 WL 1416877, at *2; Davis, 519 S.W.3d at 254–56). Although this
20
Court in Allen did not explicitly state the nature of the procedural issue, the authority
relied upon indicates the procedural issue involved a challenge to the transfer of
criminal cases between the district courts of Harris County. See Henderson, 526
S.W.3d at 821 (“The fact that appellant was indicted by a grand jury impaneled by
one court and tried in another court without a motion to transfer the case to the trial
court is, at best, a procedural issue.”); Hernandez, 2017 WL 1416877, at *2 (holding
argument “grand jury serves a particular court, not a particular county, and therefore,
when the 184th District Court’s grand jury presented the indictment, it did not vest
jurisdiction over the case in the 263rd District Court” amounted to procedural
challenge to transfer of case with Harris County that was waived unless raised before
trial); Davis, 519 S.W.3d at 256 (holding “[a]ny procedural challenge to the transfer
of a case within a county is thus determined and resolved by proper application of
local rule promulgated pursuant to constitutional and statutory authority; it is not a
jurisdictional defect”); see also Shepherd, 2017 WL 2813165, at *1 (“Because this
is not a jurisdictional matter, Appellant’s failure to challenge the indictment or the
proceedings in the trial court constitutes a waiver of his right to challenge any
procedural irregularity.”).9
9
See also Mosley v. State, 354 S.W.2d 391, 393–94 (Tex. Crim. App. 1962) (rejecting
“jurisdictional” challenge where defendant was tried and convicted in district court
other than one that empaneled grand jury even though record contained no transfer
order); Tamez v. State, 27 S.W.3d 668, 671 (Tex. App.—Waco 2000, pet. ref’d)
21
The State filed the complaint against Clifton in the 178th Trial Court, alleging
Clifton had committed the offense of aggravated assault of a family member. A
grand jury, empaneled by the 176th District Court, returned a true bill of indicment.
The indictment against Clifton was delivered, or presented, to the Harris County
District Clerk, as demonstrated by the clerk’s office’s original file stamp, and it was
filed in the county’s 178th Trial Court. See Allen, 570 S.W.3d at 800–01; see also
TEX. CODE CRIM. PROC. art. 20A.303 (“When an indictment is ready to be presented,
the grand jury shall, through the foreperson, deliver the indictment to the judge or
court clerk.”). The record reflects that the indictment was “presented” to, or received
by, the judge of the 178th Trial Court and acted upon by the grand jury because the
grand jury foreman signed the indictment, and the judge of the 178th Trial Court
directed the State to read the indictment to Clifton in open court prior to trial and
accepted Clifton’s not guilty plea. See TEX. CODE CRIM. PROC. art. 12.06 (“An
indictment is considered as ‘presented’ when it has been duly acted upon by the
grand jury and received by the court.”); Allen, 570 S.W.3d at 800–01; Henderson,
526 S.W.3d at 820 (“Logically, appellant’s arraignment in the present case could not
(holding argument trial court’s judgment was void because grand jury empaneled
by different Harris County district court presented indictment “concerns a
procedural irregularity which he should have raised in a pre-trial motion before he
pleaded guilty to the allegations of that indictment”).
22
have occurred in the 177th District Court if the trial court had not actually received
the indictment.”).
The indictment meets the constitutional definition of an indictment because it
charged (1) Clifton, a person (2) with the commission of the offense of aggravated
assault of a family member. See TEX. CONST. art. V, § 12(b); see Jenkins, 592
S.W.3d at 898 (“To meet the definition of indictment under article V, section 12(b)
of the Texas Constitution and to vest the court with both personal and subject matter
jurisdiction, the indictment must (1) charge a person, and it must (2) charge the
commission of an offense.”).
The record thus reflects that the indictment was presented to the 178th Trial
Court thereby vesting the court with jurisdiction over Clifton. See Jenkins, 592
S.W.3d at 898 (citing TEX. CONST. art. V, § 12(b)) (“The presentment of a valid
indictment vests the district court with jurisdiction of the cause.”); see also Allen,
570 S.W.3d at 801; TEX. CODE CRIM. PROC. art. 4.05 (“District courts and criminal
district courts shall have original jurisdiction in criminal cases of the grade of
felony. . .”). We thus hold there is no jurisdictional defect in the indictment. See
Henderson, 526 S.W.3d at 820–21 (holding no jurisdictional defect because
indictment charged “a person” with commission of offense and there was evidence
indictment was presented to Harris County District Clerk and trial court). Moreover,
because Clifton’s argument challenges, at most, a procedural defect, he was required
23
to preserve this issue in the trial court by raising the issue before trial. Clifton did
not do so. He thus waived his first issue. See Allen, 570 S.W.3d at 800–01.
Clifton argues that Allen is inapposite because it does not address the
mandatory requirement in Article 21.02(2) that an indictment be “presented in the
district court of the county where the grand jury is in session.” Although we have
not addressed whether a violation of Article 21.02 constitutes a jurisdictional defect,
the Texas Court of Criminal Appeals held in Jenkins v. State that the failure to
comply with Article 21.02 does not deprive a court of jurisdiction. See Jenkins, 592
S.W.3d at 902 (“We conclude, therefore, that, although defective under article 21.02,
the indictment nevertheless (1) charges a person (2) with committing an offense, and
thus vested the trial court with both personal and subject-matter jurisdiction.”).
In Jenkins, the defendant argued the trial court lacked jurisdiction over him
because his name did not appear in the indictment, and therefore, the indictment did
not charge “a person” with an offense and was void. See id. at 898. The defendant,
who acknowledged that his name was included in the document’s caption, argued
that the caption was not part of the indictment, and thus, the indictment against him
did not charge him or any “person” with an offense. See id. at 900. The court of
appeals agreed, relying in part on Article 21.02(4). See id.; TEX. CODE CRIM. PROC.
art. 21.02(4) (stating sufficient indictment “must contain the name of the accused”).
24
The Court of Criminal Appeals disagreed with the court of appeals and held
that while the indictment was defective because it did not “contain the name of the
accused,” as required by Article 21.02(4), the defect did not render the indictment
void. See Jenkins, 592 S.W.3d at 901 (“Because article 21.02 sets out what is
required to make the indictment “sufficient,” if an indictment does not comply with
article 21.02, it is considered to be defective.”).
The Court stated:
It has been well-settled since 1985 that a defect in an indictment may
not prevent it from qualifying as an indictment. An indictment can be
defective, but still be an indictment that vests the court with jurisdiction.
In fact, in Duron v. State, this Court held that in order for a defect to
“render the instrument a non-indictment,” the defect must “make it
impossible for the defendant to know with what offense he had been
charged.”
Id. The Court further held that an indictment’s failure to comply with Article 21.02
amounts to a defect in form that must be raised before the first day of trial or else the
issue is waived. See id. at 902 (“If a defendant does not object to a defect, error, or
irregularity of form or substance in an indictment before the date on which the trial
on the merits commences, he waives and forfeits the right to object to the defect,
error, or irregularity and he may not raise the objection on appeal or in any other
post-conviction proceeding.”).
Clifton objected to the indictment based on the alleged failure of the grand
jury to comply with Article 21.02(2) for the first time on appeal. He thus waived the
25
issue. See id. at 901–02. And even if he had not waived the issue, Clifton would
not prevail on appeal because the requirements of Article 21.02(2) were satisfied
when the grand jury presented the indictment to the 178th Trial Court. Article 21.02,
which sets forth the requirements for a sufficient indictment, states: “An indictment
shall be deemed sufficient if it has the following [nine] requisites,” including that
“[i]t must appear that the [indictment] was presented in the district court of the
county where the grand jury is in session.” TEX. CODE CRIM. PROC. art. 21.02(2).
Clifton argues that Article 21.02(2) requires the grand jury “to present the indictment
in the [same] district court where the grand jury is in session.” The plain language
of Article 21.02(2), however, requires that an indictment be “presented in the district
court of the county where the grand jury is in session.” Id. (emphasis added). The
176th District Court and the 178th Trial Court are both district courts of Harris
County, the county where the grand jury was in session, and thus the presentment of
the indictment to either court satisfies the requirement of Article 21.02(2) that an
indictment be “presented in the district court of the county where the grand jury is
in session.” Id.
We overrule Clifton’s first issue.
Sections 54A.006(d) and 54A.008(a)(15) of the Texas Government Code
In his second issue, Clifton argues “that the statutory authority bestowed upon
associate judges by the Legislature [in Sections 54A.006(d) and 54A.008(a)(15) of
26
the Texas Government Code] violates Article V, Section 7 of the Texas
Constitution.” According to Clifton, Article V, Section 7 of the Texas Constitution
prohibits associate judges “from handling voir dire in this case or in any other case”
and thus, “a conviction arising from any jury trial in which voir dire was conducted
by an associate judge is void.”10
A. Applicable Law
Texas district courts derive their “judicial power” from Article V of the Texas
Constitution. TEX. CONST. art. V, § 1 (“The judicial power of this State shall be
vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of
Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts
of Justices of the Peace, and in such other courts as may be provided by law.”); TEX.
CONST. art. V, § 8 (granting district courts jurisdiction). Among other things, Article
V, Section 7 requires that the state be divided into judicial districts which will be
10
Clifton also argues that “the practice violates his guarantee to a jury trial as
explicated in Article I, Section 10,” because “[i]t seems obvious that a
constitutionally guaranteed jury trial must be presided over by an appropriate
judicial officer.” See TEX. CONST. art. I, § 10 (“In all criminal prosecutions the
accused shall hav[e] a speedy public trial by an impartial jury.”). Clifton, who does
not dispute that he received a “speedy public trial by an impartial jury,” does not
cite to any authority for the proposition that a defendant is deprived of his right to a
“speedy public trial by an impartial jury” when he receives a trial that meets the
requirements of Article I, Section 10, but the trial is nevertheless defective because
it violates a separate constitutional requirement.
27
presided over by duly elected judges, and it sets forth the eligibility requirements for
such district court judges. Article V, Section 7 states:
(a) The State shall be divided into judicial districts, with each district
having one or more Judges as may be provided by law or by this
Constitution.
(b) Each district judge shall be elected by the qualified voters at a
General Election. To be eligible for appointment or election as a
district judge, a person must:
(1) be a citizen of the United States and a resident of this State;
(2) be licensed to practice law in this State;
(3) have been a practicing lawyer or a Judge of a Court in this
State, or both combined, for eight years next preceding the
judge’s election, during which time the judge’s license to
practice law has not been revoked, suspended, or subject
to a probated suspension;
(4) have resided in the district in which the judge was elected
for two years next preceding the election; and
(5) reside in the district during the judge’s term of office.
(c) A district judge shall hold the office for the term of four years
and shall receive for the judge’s services an annual salary to be
fixed by the Legislature.
(d) A District Court shall conduct its proceedings at the county seat
of the county in which the case is pending, except as otherwise
provided by law. The Court shall hold the regular terms at the
County Seat of each County in the Court's district in such manner
as may be prescribed by law. The Legislature shall have power
by General or Special Laws to make such provisions concerning
the terms or sessions of each District Court as it may deem
necessary.
28
(e) The Legislature shall also provide for the holding of District
Court when the Judge thereof is absent, or is from any cause
disabled or disqualified from presiding.
TEX. CONST. art. V, § 7.
The Texas Legislature may enact any laws not expressly or inferentially
prohibited by the Texas Constitution or the United States Constitution. See Jones v.
Williams, 45 S.W.2d 130, 137 (Tex. 1931) ( “Legislature can enact all laws not
prohibited by the Constitution, either in express terms or by necessary
implication.”); see also Brown v. City of Galveston, 75 S.W. 488, 496 (Tex. 1903)
(noting “the well-settled principle of constitutional construction that the power of
the Legislature can be restrained only by a prohibition expressed or implied from
some provision or provisions of the Constitution itself”). Section 54A.006(d) of the
Texas Government Code states: “An associate judge may select a jury. Except as
provided in Subsection (b), an associate judge may not preside over a trial on the
merits, whether or not the trial is before a jury.” TEX. GOV’T CODE § 54A.006(d).
Section 54A.008(a)(15) of the Texas Government Code states: “Except as limited
by an order of referral, an associate judge to whom a case is referred may . . . select
a jury.” Id. § 54A.008(a)(15).
B. Preservation
Clifton cites to Morrow v. Corbin, 62 S.W.2d 641, 644 (Tex. 1933), for the
proposition that a district court’s jurisdiction “embraces the power to hear and
29
determine the matter in controversy.” Id. (internal quotation marks omitted). Clifton
argues that “the judicial power exercised by district courts includes the power to
‘hear’ cases.” He posits that because an “elected district judge presides over the
district court[,] it is the district judge who ‘hears’ cases over which the district court
has jurisdiction.” He argues that because conducting voir dire is an integral part of
hearing a case, “only district judges may hear cases.” Clifton thus concludes that
“associate judges may not conduct voir dire” and a “conviction arising from any jury
trial in which voir dire was conducted by an associate judge is void.”
Citing to Davis v. State, 956 S.W.2d 555 (Tex. Crim. App. 1997), the State
responds that “a complaint about the authority of an individual to act as judge” is
not a challenge to the court’s jurisdiction and thus it cannot be raised for the first
time on appeal “unless the complaint goes to [the individual’s] constitutional
disqualifications.” The State argues that Clifton waived his challenge to the
associate judge’s authority to conduct voir dire because he is not challenging the
qualifications of the associate judge. The State further contends that even if Clifton
had preserved this issue for review, he would not prevail because the Texas
Constitution does not give elected district court judges the exclusive authority to
preside over a district court and “Texas case law is replete with examples of people
other than the elected district judge presiding over a case.”
30
Clifton acknowledges that while a challenge to the “power of the person
presiding over a court is not jurisdictional” and cannot be challenged for the first
time on appeal, he clarifies that he is “not making a jurisdictional argument.”
“Rather, [Clifton] is arguing that the statutory authority bestowed upon associate
judges by the Legislature violates Article V, Section 7 of the Texas Constitution.”11
Clifton further argues that the State’s reliance on Davis is misplaced because while
Davis states that only a challenge to a judge’s constitutional qualifications may be
raised for the first time on appeal, Davis also recognizes that “judicial functions
performed by one without any authority to act” may be either void or voidable. See
Davis, 956 S.W.2d at 559.
In Davis, the Court explained:
While our case law has called the authority of the judge to preside a
jurisdictional issue, we now disavow that characterization, because as
we have explained, jurisdiction or judicial power is vested in courts, not
individuals. This is not to say that judicial functions performed by one
without any authority to act may not be void. For example, if the trial
judge is related to a party by affinity or consanguinity or had formerly
prosecuted the same case he now presides over, he is constitutionally
11
A defendant may not challenge the constitutionality of a statute for the first time on
appeal. See Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014)
(holding “[a]s applied” constitutional challenges must be preserved by objection or
complaint to trial court); Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.
2009) (“[A] defendant may not raise for the first time on appeal a facial challenge
to the constitutionality of a statute.”). Clifton did not challenge the constitutionality
of Sections 54A.006(d) and 54A.008(a)(15) of the Texas Government Code in the
trial court. To the extent his brief can be construed as a challenge the
constitutionality of these statutes on appeal, neither constitutional challenge was
preserved for appellate review, and thus Clifton waived these issues.
31
disqualified under Article V, Section 11. See Ex parte Vivier, 699
S.W.2d 862 (Tex. Cr[im]. App. 1985); Ex parte Washington, 442
S.W.2d 391 (Tex. Cr[im]. App. 1969). In French v. State, 572 S.W.2d
934 (Tex. Cr[im]. App. 1978) (on second motion for rehearing), a
temporary appointed municipal judge’s actions were held void because
he had not taken the oath of office as required for elected judges and
appointed officers by Article XVI, Section 1, Texas Constitution.12
Therefore, as opposed to being disqualified from acting in a particular
case, the special judge in French was not qualified because he had not
taken the constitutionally required oath. See also Herrod v. State, 650
S.W.2d 814 (Tex. Cr[im]. App. 1983) (retired judge was not authorized
to preside because record failed to show: an order of assignment from
the administrative judge, that the duly elected judge was disabled, and
that the retired judge had executed the bond and taken the oath of
office). But see Buchanan v. State, 471 S.W.2d 401 (Tex. Cr[im]. App.
1971) (absent showing to the contrary, court presumes that retired judge
was properly assigned to the case).
Id. The Davis court observed:
Common to all of the above cases which hold the conviction void is the
constitutional or statutory disqualification or lack of qualification of the
judge. If the putative judge did not possess the prescribed qualifications
to act in that capacity or he was disqualified from a particular case
because of his relationship to the case or a party, he had no authority
over the proceedings and his actions were a nullity.
12
In French v. State, 546 S.W.2d 612 (Tex. Crim. App. 1977), the defendant’s
residence was searched. The evidence was seized pursuant to a search warrant
issued by an appointed municipal judge who had not taken the oath of office. The
court held that because the municipal judge had not taken the oath of office, the
search warrant he issued was void and the evidence seized was not admissible. Id.
at 614; see also French v. State, 572 S.W.2d 934 (Tex. Crim. App. 1977) (op. on
reh’g) (overruling first motion for rehearing). Thus, the trial court abused its
discretion by revoking the defendant’s probation based on this inadmissible
evidence. French, 546 S.W.2d at 614 (reversing and remanding).
32
Id. (emphasis in original); see also Mata v. State, 991 S.W.2d 900, 902 (Tex. App.—
Beaumont 1999, pet. ref’d) (“The actions of a judge without authority are void if the
judge is either disqualified, or is not qualified. [Davis, 956 S.W.2d] at 559.
Otherwise, the actions are merely voidable and must have been objected to in order
to be preserved for appeal.”).
Clifton, who agrees that only a complaint about the qualifications of a judicial
actor may be raised for the first time on appeal, asserts:
[H]e is not complaining about the associate judge’s qualifications to be
an associate judge. But contrary to what the State says, a complaint
about a judicial actor’s qualifications are not the only complaints that
need not be preserved. As the Davis Court makes clear, the key inquiry
is whether our Constitution disqualifies the judicial actor from taking
the action in question. And here, that is precisely Mr. Clifton’s
complaint. He is asserting that the associate judge is barred by the Texas
Constitution from handling voir dire in this case or in any other case.
We understand Clifton to argue that his conviction is void because the Texas
Constitution allows only district court judges to conduct voir dire and thus the
associate judge who conducted voir dire in his case was not qualified to perform that
judicial function. Clifton may challenge a void judgment for the first time on appeal.
See Nix, 65 S.W.3d at 668 (stating void judgments in criminal cases are nullities and
may be attacked at any time).
C. Analysis
Although Article V, Section 7 of the Texas Constitution authorizes elected
district court judges to preside over cases pending in district courts, Article V,
33
Section 7 neither vests district court judges with the exclusive authority to do so nor
expressly prohibits an unelected judge, including an associate judge, from presiding
over any aspect of a felony trial,13 including conducting voir dire. TEX. CONST. art.
V, § 7. Thus, contrary to Clifton’s arguments, the plain language of the Texas
Constitution does not bar associate judges from conducting voir dire in criminal
cases. See Johnson v. Tenth Jud. Dist. Ct. of Appeals at Waco, 280 S.W.3d 866, 872
(Tex. Crim. App. 2008) (“As with statutory construction, when we construe a
provision of the Texas Constitution, we are principally guided by the language of
the provision itself . . . .”); see also Fain v. State, 986 S.W.2d 666, 672 (Tex. App.—
Austin 1998, pet. ref’d) (“When interpreting our state constitution, we rely heavily
on its literal texts, and are to give effect to its plain language.”). Because the Texas
Constitution did not bar the associate judge from conducting voir dire in Clifton’s
13
“Criminal district courts have original jurisdiction in felony criminal cases.”
Henderson, 526 S.W.3d at 820; see TEX. CODE CRIM. PROC. art. 4.05 (“District
courts and criminal district courts shall have original jurisdiction in criminal cases
of the grade of felony, of all misdemeanors involving official misconduct, and of
misdemeanor cases transferred to the district court under Article 4.17 of this code.”);
see also TEX. CONST. art. V, § 8 ( “District Court jurisdiction consists of exclusive,
appellate, and original jurisdiction of all actions, proceedings, and remedies, except
in cases where exclusive, appellate, or original jurisdiction may be conferred by this
Constitution or other law on some other court, tribunal, or administrative body.”).
34
case, she was not disqualified from performing this function, and thus her actions
were not void.14
We overrule Clifton’s second issue.
Admission of Evidence
In his third issue, Clifton argues the trial court abused its discretion by finding
he was barred from asserting his rights under the Sixth Amendment’s Confrontation
Clause or objecting to the admission of Sanders’ out-of-court statements as hearsay
based on the doctrine of forfeiture by wrongdoing. Clifton contends that, at most,
the evidence demonstrates that it was his mother that bribed Sanders not to attend
trial, not him.
In his fourth issue, Clifton argues the trial court abused its discretion by
admitting Sanders’ out-of-court statements included in a report prepared by
emergency medical personnel (State Exhibit 55) and Sanders’ hospital records (State
Exhibit 56). He argues that the admission of these statements violated his rights
under the Sixth Amendment’s Confrontation Clause because Sanders was not
available to be cross-examined about the statements.15
14
Clifton does not dispute that the associate judge was authorized by statute to conduct
voir dire. See TEX. GOV’T CODE § 54A.006(d) (“An associate judge may select a
jury.”); id. § 54A.008(a)(15) (“Except as limited by an order of referral, an associate
judge to whom a case is referred may . . . select a jury.”).
15
Clifton suggests that the doctrine of forfeiture by wrongdoing does not apply to
State Exhibits 55 and 56 because they were not the subject of the Article 38.49
hearing conducted by the trial court.
35
The State argues that the doctrine of forfeiture by wrongdoing allowed the
admission of Sanders’ out-of-court statements, including State Exhibits 55 and 56,
because Clifton wrongfully procured Sanders’ unavailability at trial.
A. Standard of Review and Applicable Law
The Confrontation Clause of the Sixth Amendment guarantees an accused the
right to confront the witnesses against him. Paredes v. State, 462 S.W.3d 510, 514
(Tex. Crim. App. 2015). Under the Confrontation Clause, “testimonial”
statements—statements that were made under circumstances that would lead an
objective witness to reasonably believe they would be available for use at a later
trial—are inadmissible at trial unless the witness who made them either takes the
stand to be cross-examined or is unavailable and the defendant had a prior
opportunity to cross-examine the witness. Id.Under the doctrine of forfeiture by wrongdoing, a defendant is barred from
objecting to a witness’ out-of-court statements based on the Confrontation Clause or
hearsay when he wrongfully procures the witness’ unavailability at trial. Colone v.
State, 573 S.W.3d 249, 264–65 (Tex. Crim. App. 2019). This exception applies only
when the defendant “engaged in conduct designed to prevent the witness from
testifying.” Giles v. California, 554 U.S. 353, 359, 365 (2008) (explaining that
absence of forfeiture rule for such conduct “would create an intolerable incentive for
defendants to bribe, intimidate, or even kill witnesses against them”). The doctrine
36
of forfeiture by wrongdoing is based on the principle that tampering with a witness
“should . . . estop the tamperer from making any objection based on the results of
his own chicanery.” Colone, 573 S.W.3d at 264 (quotation omitted); see generally
Davis v. Washington, 547 U.S. 813, 833 (2006) (stating doctrine of forfeiture by
wrongdoing extinguishes confrontation claims on equitable grounds and noting that
“when defendants seek to undermine the judicial process by procuring or coercing
silence from witnesses and victims, the Sixth Amendment does not require courts to
acquiesce. While defendants have no duty to assist the State in proving their guilt,
they do have the duty to refrain from acting in ways that destroy the integrity of the
criminal-trial system.”).
Texas Code of Criminal Procedure Article 38.49 codifies the doctrine of
forfeiture by wrongdoing. It states that:
(a) A party to a criminal case who wrongfully procures the
unavailability of a witness or prospective witness:
(1) may not benefit from the wrongdoing by depriving the
trier of fact of relevant evidence and testimony; and
(2) forfeits the party’s right to object to the admissibility of
evidence or statements based on the unavailability of the
witness as provided by this article through forfeiture by
wrongdoing.
(b) Evidence and statements related to a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure
the unavailability of a witness or prospective witness are
admissible and may be used by the offering party to make a
37
showing of forfeiture by wrongdoing under this article, subject
to Subsection (c).
(c) In determining the admissibility of the evidence or statements
described by Subsection (b), the court shall determine, out of the
presence of the jury, whether forfeiture by wrongdoing occurred
by a preponderance of the evidence. If practicable, the court
shall make the determination under this subsection before trial
using the procedures under Article 28.01 of this code16 and Rule
104, Texas Rules of Evidence.17
(d) The party offering the evidence or statements described by
Subsection (b) is not required to show that:
(1) the actor’s sole intent was to wrongfully cause the
witness’s or prospective witness’s unavailability;
(2) the actions of the actor constituted a criminal offense; or
(3) any statements offered are reliable.
(e) A conviction for an offense under Section 36.05 or 36.06(a),
Penal Code, creates a presumption of forfeiture by wrongdoing
under this article.18
(f) Rule 403, Texas Rules of Evidence, applies to this article.19 This
article does not permit the presentation of character evidence that
16
Article 28.01 addresses what matters may be heard during a pretrial hearing. TEX.
CODE CRIM. PROC. art. 28.01.
17
Texas Rule of Evidence 104 addresses preliminary questions the trial court
decides, such as whether a witness is qualified, whether a privilege exists, or
whether evidence is admissible. TEX. R. EVID. 104(a).
18
TEX. PENAL CODE § 36.05(a) (witness tampering); id. § 36.06(a) (obstruction or
retaliation).
19
Texas Rule of Evidence 403 states that a trial court may exclude evidence if its
probative value is substantially outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. TEX. R. EVID. 403.
38
would otherwise be inadmissible under the Texas Rules of
Evidence or other applicable law.
TEX. CODE CRIM. PROC. art. 38.49. The federal equivalent of Article 38.49 is Federal
Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine under federal law.
Federal Rule of Evidence 804(b)(6) states: “A statement offered against a party that
wrongfully caused—or acquiesced in wrongfully causing—the declarant’s
unavailability as a witness, and did so intending that result” is not excluded by the
rule against hearsay if the declarant is unavailable as a witness. FED. R. EVID.
804(b)(6). Thus, under both Texas and federal law, the doctrine of forfeiture by
wrongdoing applies when a defendant engages in conduct that was intended to, and
did, cause the unavailability of a witness or when the defendant acquiesces to such
wrongdoing. See TEX. CODE CRIM. PROC. art. 38.49(b); FED. R. EVID. 804(b)(6); see
also United States v. Rivera, 412 F.3d 562, 567 (4th Cir. 2005) (stating “[a]ctive
participation or engagement . . . is not required” for forfeiture-by-wrongdoing to
apply); United States v. Thompson, 286 F.3d 950, 963–64 (7th Cir. 2002) (imputing
co-conspirators actions to defendant for purposes of Rule 804(b)(6)); United States
v. Cherry, 217 F.3d 811, 820 (10th Cir. 2000) (same); Olson v. Green, 668 F.2d 421,
429 (8th Cir. 1982) (stating defendant “or someone acting on his behalf may waive
or forfeit [defendant’s] right” to confront accuser).
Because the forfeiture by wrongdoing doctrine concerns the admission of
otherwise inadmissible evidence, we utilize the abuse of discretion standard in
39
reviewing a trial court’s admission of evidence under the doctrine. See Shepherd v.
State, 489 S.W.3d 559, 572–73 (Tex. App.—Texarkana 2016, pet. ref’d). We will
uphold the trial court’s ruling if there is some evidence to support the trial court’s
decision and it is correct under any theory of law applicable to the case. See
Armendariz v. State, 123 S.W.3d 401, 405 (Tex. Crim. App. 2003) (stating appellate
courts must uphold evidentiary rulings if they are correct under any theory of law
supported by record regardless of what reason trial court gives); Osbourn v. State,
92 S.W.3d 531, 538 (Tex. Crim. App. 2002) (stating trial court does not abuse its
discretion by admitting evidence if there is some evidence to support trial court’s
decision). If the trial court does not issue findings of fact, we review the evidence
in the light most favorable to the trial court’s ruling and assume the court made
findings that are supported by the evidence. Shepherd, 489 S.W.3d at 572–73; see
also Schindler v. State, No. 02-17-00241-CR, 2018 WL 4924946, at *6 (Tex. App.—
Fort Worth Oct. 11, 2018, pet. ref’d) (mem. op., not designated for publication)
(stating that during Article 38.49 hearing, trial court is sole trier of fact and judge of
credibility of witnesses and weigh given their testimony). “When assessing evidence
regarding acts alleged to have procured a witness’ unavailability, we draw all
reasonable inferences in favor of the trial court’s finding.” Byrd v. State, No. 07-20-
00234-CR, 2022 WL 2719060, at *6 (Tex. App.—Amarillo July 13, 2022, pet. ref’d)
40
(mem. op., not designated for publication) (citing Brown v. State, 618 S.W.3d 352,
355 (Tex. Crim. App. 2021)).
B. Texas Code of Criminal Procedure Article 38.49 Hearing
As required by the statute, the trial conducted an Article 38.49 hearing outside
the presence of the jury. The State presented testimony from: Sergeant Mark
Schmidt, Investigator Bilsen Espinosa, Deputy Norman Fitts, and Caseworker Maria
Bahena.
1. Sergeant Mark Schmidt
Sergeant Mark Schmidt (“Sergeant Schmidt”) with the Harris County
Sheriff’s Office is an administrator of the county’s Inmate Phone System. Sergeant
Schmidt testified that inmates are allowed to make outgoing phone calls, but they
must enter a pin number before dialing a phone number and all outgoing inmate
phone calls are recorded. The inmate’s pin number is a combination of the inmate’s
eight-digit system person number (“SPN”), which is unique to that inmate, plus six
additional numbers. Sergeant Schmidt testified that inmates commonly use other
inmate SPNs to make phone calls.
According to Sergeant Schmidt, on August 18 and 19, 2022, an inmate placed
a call to Clifton’s mother, Viola Clifton (“Viola”), using a SPN belonging to an
inmate assigned to Clifton’s cell block. A DVD containing audio recordings of these
phone calls was admitted later in the hearing (State Exhibit 5).
41
2. Investigator Bilsen Espinosa
Investigator Bilsen Espinosa (“Investigator Espinosa”), with the Harris
County District Attorney’s Office’s Domestic Violence Division, testified that one
of his responsibilities is coordinating witnesses for trial, including issuing subpoenas
and making travel and lodging arrangements for witnesses. Investigator Espinosa
testified that he issued a subpoena to Sanders on August 18, 2022, and Sanders met
with the State on August 20, 2022. The trial court admitted a recording of Sanders’s
Zoom meeting with the State on August 20, 2022 (State Exhibit 8). Investigator
Espinosa testified that during that meeting, Sanders provided more details about the
assault, and she asked about court attire and logistical matters pertaining to her
testimony.
According to Investigator Espinosa, Sanders, who had been “very
cooperative” until that time, did not respond to District Attorney’s Office’s attempts
to contact her after the August 20, 2022 meeting.
3. Deputy Norman Fitts
Deputy Norman Fitts (“Deputy Fitts”), an investigator with the Harris County
Sheriff’s Office, interviewed Sanders at Southwest Memorial Hospital the night of
the assault. According to Deputy Fitts, Sanders was “traumatized” and had several
severe injuries. Sanders gave a recorded statement to Deputy Fitts which the trial
42
court admitted for purposes of the hearing (State Exhibit 10). Sanders gave Deputy
Fitts a detailed description of the assault and she named Clifton as her assailant.
Sanders told Deputy Fitts that she was afraid of Clifton, and she wanted to
press charges against him. The trial court also admitted photographs of Sanders
depicting her injuries and the apartment where the incident occurred (State Exhibits
12, 13, 14, 15, 16, and 17).
4. Caseworker Maria Bahena
Maria Bahena (“Bahena”), a caseworker with the Harris County District
Attorney’s Office, testified that she spoke with Sanders ten times prior to trial.
According to Bahena, Sanders, who asked her about getting a protective order, told
Bahena she was concerned about her safety because “she was still receiving contact
from the defendant’s family, from the defendant through social media accounts.”
Sanders told Bahena she was being contacted by Clifton’s mother, sister, and his
other family members.20
20
During the hearing, the trial court also admitted the following exhibits: (1) June 3,
2020 order granting the State’s Motion of Bond Conditions, which among other
things, prohibits Clifton from contacting Sanders (State Exhibit 1), (2) September
11, 2019 protective order which prohibits Clifton from “communicating directly
with [Sanders] in a threatening or harassing manner” (State Exhibit 2), (3) Clifton’s
jail card which identifies his mother, Viola Clifton, as his next of kin and lists her
telephone number (State Exhibit 3), and (4) the subpoena issued to Sanders (State
Exhibit 18).
43
When Bahena spoke to Sanders on August 19, 2022, Sanders wanted to know
how she could keep her personal information confidential and she asked about “any
services that may assist her with the reimbursement for the childcare, and loss of
work due to coming into court.” Based on their conversation, Bahena believed
Sanders would be flying in as scheduled for Clifton’s trial.
5. Phone Calls from the Harris County Jail
During the hearing, the trial court admitted four DVDs containing audio
recordings of phone calls Clifton made from the Harris County jail on the following
dates: September 11, 2019; January 19, 24, and 26, 2022; April 14, 2022; and August
19, 21, and 24, 2022. The audio recordings also included phone calls Clifton placed
on August 18 and 19, 2022, using the SPN belonging to another inmate in Clifton’s
cell block. The phones calls were admitted as State Exhibits 4, 5, 6, and 7. The trial
court also admitted a transcription of portions of those phone calls as a demonstrative
exhibit (State Exhibit 9).
After the State and Clifton rested, the trial court adjourned the hearing and
reviewed the audio recordings in State Exhibits 4, 5, 6, and 7 at the times indicated
in State Exhibit 9.
(a) September 11, 2019
On September 11, 2019, Clifton called his mother Viola from jail over a
recorded line. Clifton told Viola, “Call this girl ma, cause they say they throw this
44
case out, cause it ain’t how it look.” Viola asked him, “Who you want me to call?
[Sanders]?” Clifton responded, “Yeah . . . I need her cell.” Viola told him, “I
wouldn’t even call her. Let her know I’m up there. Don’t even let her know you up
there. They probably know how to get in touch with her.” Clifton responded, “They
can’t.” Later in the call Viola said, “You do not need to call that girl and let her
know that you are up there.” Clifton asked, “When is the last time you talk to her?”
Viola told Clifton, “I haven’t. She don’t answer the phone no more.”
(b) January 19, 2022
On January 19, 2022, Clifton called Viola from jail. Viola told him, “I talked
to [Sanders] today, she called me. She said [the] prosecutor called her today, and
told [her] you were back in custody, and she told them that she is not coming to
testify, she ain’t doing nothing. So she told me.” Clifton asked, “So what they say?”
Viola responded, “I’ve been calling the attorney. First of all, no witness, no nothing.
They ain’t got nothing. They might as well release you.” Later in the call, an
unidentified female asked Clifton when he was coming home and Clifton responded,
“I already called my mama. I ain’t do that shit. She ain’t going to testify.”
(c) January 24, 2022
On January 24, 2022, Clifton called Viola from jail. Clifton told Viola, “Don’t
call Jordan. Call J, so I can see what she talking about, what she said. Call J.” Viola
asked, “[Sanders]?” Clifton responded, “Yeah.” Viola told Clifton, “Hold on. She
45
talked to the DA. She called me when she talked to them.” Sanders then joined the
call. Clifton greeted her, “Hey J.” Sanders asked Clifton, “What’s up?” Clifton
responded, “Hey fool, look, check this out, right. I just came to court. I heard they
told you [inaudible]. Hear me you ain’t got to do . . . you ain’t got to say . . .” Clifton
also told Sanders, “Alright look, I’m going to set this junk for trial—they on some
gay ass shit . . . they offered 12 years and shit. He told me that you [inaudible]. But
they say the DA . . . whoever you told me you talked to, I just need you not to come
and they will dismiss on my trial date.” Sanders replied, “Alright. I already told
them. They called me a couple of days ago. I told them I wasn’t a part of it. Then
they were like am I sure. I was like yeah. They said it is still up to the judge and
that was all.”
(d) January 26, 2022
On January 26, 2022, Clifton called Viola from jail. A woman named Jordan
told Clifton, “Quit irritating me.” Clifton responded, “Fuck, I’m irritating you. How
you shouldn’t be irritated. You’re free. I’m the one irritated. I’m in jail. I said text
this number right there. I said grab your phone and text this number.” Jordan said,
“Not [Sanders].” Clifton told Jordan, “Nah, not texting that hoe. Fucking no. I’m
going to call her for? We ain’t got nothing to talk about for. We never have nothing
to talk about. I’m just trying to make sure the hoe gonna do what she’s supposed to
do so that I’m back on the other side. Other than that we ain’t have no conversations
46
with that hoe. I’m in this jam. Fuck. Be for real. I barely be wanting to talk to your
ass. Why the fuck would I talk to her?” An unidentified female then asked Clifton,
“Who am I texting? 346-756—who is it? I am not texting unless you tell me who
it is.” Clifton said, “What the fuck, why would I make you text the bitch. I am not
that bold to tell you to text the bitch. Baby this ain’t no bitch. The message say tell
her Robert said can she put the money on my books . . . .”
(e) April 14, 2022
On April 14, 2022, Clifton called Viola from jail. Seven minutes into the call,
an unidentified female told Clifton, “She didn’t answer. Hold on she calling back.
There you go.” Someone asked Clifton, “Hey you go to court?” and Clifton
responded, “They talking about setting me for trial. I go to court in 2 1/2 months.
Yeah I go.” An unidentified female stated, “The girl—she said the same thing—
they said the girl said she ain’t going to show up ain’t going forward with
prosecution. They feel they can still force her to come to court. If she don’t show
up for court they try to dismiss that. He full of shit. Cause you should have got out.”
At eight and a half minutes into the call, Viola states, “Shit when I talk to her
she said she done with that.” Clifton told her, “You need to make sure to let her
know don’t try to do no [indistinguishable].” Viola said, “They don’t know how to
get in touch with that girl they don't know her address. That lawyer is full of shit -
they don’t know how to get in contact with her. They need to dismiss that shit. You
47
let him know you know . . . hearsay can’t stand in court. Tell him you know the law.
They are going to be intimidated. He works for the state as well. If she don’t show
up to court it has to be dismissed as well.” At ten and a half minutes, Clifton told
Viola, “Hey try to call her though. You know what I am saying.” Viola said, “I
called. But you should be out.” Viola told Clifton, “Tell your lawyer hearsay can’t
stand up in the court of law. The girl already said she won’t show up to court. Y’all
need to let me know. This is a waste of taxpayer money. Nah, they ain’t going to
take to trial. They ain’t got no witness. They can’t go on hearsay.”
(f) August 18, 2022
On August 18, 2022, Clifton called Viola using another inmate’s SPN. When
Viola answered the phone, Clifton asked her if “that lawyer called.” Viola said,
“Yeah, he called me. . . Don’t listen. Play the game because tomorrow you gonna
be released.” Clifton said, “Look, look, you can talk on this call because this ain’t
my phone call, so they can’t hear what we saying. I am on someone else’s call, so
they can’t hear what we saying. This ain’t recorded all the time . . . You need to
umm get somebody to call that girl and make sure everything still . . . .” Viola
interrupted Clifton and told him, “She ain’t coming. She already said she is not
coming.” Clifton said, “When? That was a long time but you don’t know if they
scared her or what.” Viola assured Clifton, “They ain’t scare her Anthony. She ain’t
coming. Look. Tomorrow—I already told him you would take probation. If they
48
give you probation, you will take that or even time served. Don’t let no judge
sentence you to, or don’t take nothing. I already told him the deal . . . I said you got
nineteen months . . . I said tomorrow y’all can get him either time served or you can
get him some probation. I said either or. I said I can bet you anything she’s not
going to show up. She’s not coming. He said, well, she told me that.” Clifton
interrupted, “She told him what?” Viola said, “She had told him that. He said when
he told her I talked to her, she told me wasn’t coming. I said she’s not going to show
up.” Clifton said, “He told . . . said that she told umm . . . that she said they gonna
fly her out Wednesday. My trial start Thursday.” Viola said, “Tomorrow he’ll have
a deal for you. Whatever you do, you stick to time served or probation. No, you’re
not going to let no judge sentence you. That’s a no, cuz no you not gonna do that.
Tomorrow when you go in there they ain’t going to want to take you to trial. They
aren’t going to pay that money out for your ass . . .You ain’t even from Texas
. . .They ain’t gonna pay for no jury trial for you . . . you ain’t worth taxpayer money
like that. Tomorrow, you will take probation or time served. That’s it. Cause she
ain’t going to show up . . . they don’t even know where that girl at.” Viola assured
him he would be “coming home tomorrow. I can tell from how [the lawyer] was
talking.” Clifton asked, “What did he say because he was trying to bluff me out.”
Viola told Clifton to insist on going to trial, “Guess what? They gonna come and
say they will give you probation or time served.”
49
(g) August 19, 2022 at 3:48 pm
On Friday, August 19, 2022, the associate judge for the 178th Trial Court
presided over voir dire in Clifton’s case. Clifton, who had been in court for the
proceeding, called Viola at 3:48 p.m. after he returned to the jail. During the call,
Viola told Clifton, “That girl ain’t coming to court, I am going to call her.” Three
minutes later, Clifton told someone, “[Sanders], I don’t even talk to her. Her and I
ain’t on good terms.” Clifton said, “The only person that I got, that I know for sure,
that I can rely on, that’s been in my corner, is my mama . . . I can’t say what I am
going to do cause you can’t tell what [Sanders] is going to do, she might say yes and
she might not come . . . She might say yeah, they change her mind and she wanna
come. [Sanders] probably won’t even answer the phone for my mama . . . [Sanders]
won’t even let Jordan call her, so I know that’s out the window.”
(h) August 19, 2022 at 4:28 p.m.
An hour later at 4:28 p.m., Clifton called Viola using another inmate’s SPN.
Viola told Clifton that she had just spoken to Sanders and Sanders said that “they
subpoenaed her to come.” Viola said that when she asked Sanders if she was going
to testify, Sanders said, “I don’t know. I don’t know what I am going to do.” Clifton
asked Viola, “Did you tell her that if she doesn’t come, they will dismiss the case
and then they can’t do nothing to her?” Viola said, “Yeah.” Clifton told Viola, “I’m
on someone else’s phone call. So call her. They can’t trace this back to me. I’m on
50
someone else’s phone call. So call her right quick.” Viola told Clifton, “I believe if
you would have never ever gave them—they wouldn’t have been able to get in touch
with that girl . . . a long time ago—if they wouldn’t never had a way to get in contact
with her—you gave them a way to get in contact with her.”
Viola, who had apparently called Sanders and left a message, told Clifton,
“She probably going to call me back. She said yeah they subpoena me to come to
court, but I don’t know what to do. But you’re going to give . . . white folks . . . you
know . . . so I said to her Jerika, Jerika, first of all, you was trying to hit him with the
glass . . . .” Clifton interrupted Viola and asked her, “Why would you say that to her
though? Why did you do that? Out of everything—that was the worst thing you
could of ever said. Now you gonna make her.” Viola told him, “You just pray she
don’t show up to court.” Clifton urged Viola, “Just call her back one more time.
Try to call her back one more time. I don’t think she had her on the phone because
if they had her on the phone they would have gave me another charge for violating
a protective order.”21 A few seconds later, Clifton said, “Hello? She didn’t answer?
Hello?” Viola responded, “I don’t think she’s going to come to court.” Clifton
asked, “What did she say they told her?” Viola answered, “She said yeah they
21
The September 11, 2019 protective order, which was admitted during the Article
38.49 hearing, prohibits Clifton from “communicating directly with [Sanders] in a
threatening or harassing manner.” And the June 3, 2020 order granting the State’s
Motion of Bond Conditions prohibits Clifton from contacting Sanders.
51
subpoena her to court. If they subpoena her to court and she don’t come . . . .”
Clifton interrupted Viola, “The lawyer said they didn’t subpoena her yet—she lying.
They are calling to tell her to come to court. They don’t know where she is. She is
lying about that.” Clifton asked Viola, “You talked to her though?” and Viola said,
“Yeah, she called me back she called me twice, but her phone was messing up.”
Clifton asked, “So what else did she say?” Viola told him, “She will call me back.
I should have let the lawyer talk to her.” Clifton asked Viola, “Is she saying like
she’s going to come to court?” Viola told him, “She was like I don’t know what I’m
going to do. She said do I have to go?” Clifton asked, “What did you tell her?”
Viola responded, “Yeah—I did tell her that—said you ain’t got to go I don’t think
she coming [indistinguishable].” Clifton told Viola, “Them folks will give me 20
years. He said if I lose in trial they can give me twenty. The lowest I might get is
15 years if I lose in trial because I didn’t take the 12.” Clifton told Viola to “[t]ry to
tell Miles to call off his phone.” Viola assured Clifton, “You ain’t going to go to
trial, trust me.” When Clifton asked if she was “calling the phone,” Viola said, “She
ain’t answering no more. I don’t think she is going to come to court. I just don’t.”
Clifton told her, “If she’s not coming to court—why is she not answering the phone.
You got me scared. She got me scared. ‘I don’t know what I am going to do’ what
does she mean she don’t know what she is going to do?”
52
When Viola told Clifton that she had to go, Clifton told her, “Wait what was
it you told me you tell her? Why ain’t you telling her man they trying to get him a
lot of time. This case old. Y’all don’t conversate no more or nothing. You can just
leave this alone. You been moving on so like—why you ain’t talk to [Sanders] like
that.”22 Clifton then asked Viola “how long I be on that phone.” Viola told him,
“Not that long. Call back. I’m going to try to call her. Call back later on.”
(i) August 21, 2022
On Sunday, August 21, 2022, Clifton called Viola. Viola asked Clifton if he
was using his SPN, or someone else’s and he told her it was “his call.” Viola told
him, “That girl ain’t coming to court . . .You’ll be home Thursday.” Clifton said, “I
know.” When Clifton continued to ask for money for his jail spending account,
Viola assured him that he will be “walking out of there Thursday.” Viola said, “I
talked to her for about 2 hours. She’s not coming. You gonna call me from
somebody else’s phone?” Viola told him, “That girl ain’t coming to court.” Clifton
asked, “How you know that?” Viola told Clifton, “I know she ain’t. I gave her baby
$2,000 worth of clothes. She said I am not coming. I am definitely not coming. She
said I will not be there.” Clifton asked, “How did you get it to her?” Viola
responded, “How do you think? . . . I mailed it to her. It’s going out, uh. We tried
22
The transcriber included the following notation: “This is not phrased as a
suggestion. This is phrased tell her this when you talk to her.”
53
to send it off yesterday, but she said the address was a PO box . . . so uh, we mailing
it off where it get there next day, so she will get it Tuesday.” Viola told Clifton,
“And I don’t see how a trial could go on without a witness. I ain’t never heard of
that in my life.”
(j) August 24, 2022
On Wednesday, August 24, 2022, the day before trial began, Clifton called
Viola and told her he had spoken to his lawyer and the lawyer told him that if Sanders
“don’t show up they might be time served.” Viola stated, “We know she ain’t gonna
show up . . . Ima call her again today.” Clifton said, “Alright.” Viola told him,
“They already know [Sanders] ain’t going to show up cuz they already know that if
she were going to show up, she would be here now. And he would know if she was
here. That girl told me yesterday she ain’t coming. I am gonna to call her again and
make sure she got her baby clothes because they was there.”
6. Trial Court’s Ruling
After hearing the testimony and reviewing State Exhibits 4, 5, 6, and 7 in
chambers, the trial court found:
In regards to the evidence submitted at this hearing, the Court finds that
the State does indeed prove by a preponderance of the evidence the
intent of the defendant to make the complainant unavailable for trial.
And for those reasons, the State’s motion is granted. And the State’s
seeking to admit the following evidence is therefore granted in regards
to the complainant’s statement to police detectives at the hospital. [State
Exhibit 10]. Number two, the complainant’s statement in a witness
54
meeting on August 20th of 2022 in regards to jail calls [State Exhibit
8].
7. Statements from Sanders Admitted During Trial
When Sanders failed to appear for trial, the State offered into evidence a DVD
containing an audio recording of the statement Sanders gave to Deputy Fitts at the
hospital. Clifton objected to the admission of the DVD based on hearsay and the
Confrontation Clause. The trial court overruled Clifton’s objections and admitted
State Exhibit 10 into evidence.23 The State also offered into evidence a DVD
containing the statements Sanders made during her August 20, 2022 meeting with
the State as State Exhibit 54. The trial court stated the exhibit had been admitted at
the Article 38.49 hearing as State Exhibit 8.24
The State also offered into evidence a DVD containing audio recordings of
four of Clifton’s jail calls previously admitted at the Article 38.49 hearing (State
Exhibit 57). State Exhibit 57 contains audio recordings of calls made on January 24
and 26, 2022, and August 19 and 21, 2022.25 Clifton objected to the admission of
the January 24, 2022 call included on State Exhibit 57, which includes statements
23
Clifton also objected to the admission of State Exhibit 10 pursuant to Texas Rules
of Evidence 403, 404(b), and 802 (hearsay). The trial court overruled these
objections and Clifton is not challenging the trial court’s ruling on appeal.
24
Clifton did not object to the admission of State Exhibit 54 when it was admitted at
trial.
25
The January 24 and 26, 2022 calls were included on State Exhibit 4. The August
19, 2022 call was included on State Exhibit 5, and the August 21, 2022 call was
included on State Exhibit 6.
55
Sanders made to Clifton, based on hearsay and the Confrontation Clause.26 The trial
court noted that the jail calls had been admitted at the Article 38.49 hearing. The
trial court overruled Clifton’s objections and admitted State Exhibit 57 into evidence
in its entirety.
The State also offered into evidence a report prepared by emergency medical
personnel containing statements Sanders gave to a paramedic describing the assault
(State Exhibit 55), and Sanders’ hospital records, containing statements Sanders
made describing the assault and identifying Clifton as her assailant (State Exhibit
56). Clifton objected to the admission of Sanders’ statements in State Exhibits 55
and 56 based on the Confrontation Clause.27 The State argued the statements were
not testimonial and thus the Confrontation Clause was not applicable. The trial court
overruled Clifton’s objection and admitted State Exhibits 55 and 56 into evidence in
their entirety.
C. Analysis
Clifton argues there is no evidence he engaged in conduct intended to prevent
Sanders from testifying at trial. According to Clifton, the evidence shows he knew
26
Clifton also objected to the admission of State Exhibit 57 based on relevance,
hearsay, and pursuant to Texas Rules of Evidence 403 and 404(b). The trial court
overruled these objections and Clifton is not challenging the trial court’s ruling on
appeal.
27
Clifton also objected that the statements constituted inadmissible hearsay. The trial
court overruled the objection and Clifton does not appear to be challenging the trial
court’s ruling on appeal.
56
he was facing twenty years’ incarceration if convicted, and he believed the State
would offer him either probation or time served if Sanders did not testify at trial, but
there is no evidence he did “anything to dissuade [Sanders] from attending in the
first place” or “attempt[ed] to procure [Sanders’] absence from the trial.” Clifton
argues that, at most, the evidence, including his August 21, 2022 phone call to his
mother, demonstrates that his mother Viola offered Sanders $2,000 worth of baby
clothes in a last-minute attempt to “entice [Sanders] into not coming to the trial.”
According to Clifton, “[n]othing on [the August 21, 2022] call indicates that [he]
suggested that [Viola] take such an action.”
Article 38.49 of the Texas Code of Criminal Procedure provides that a
defendant “who wrongfully procures the unavailability of a witness . . . forfeits [his]
right to object to the admissibility of evidence or statements based on the
unavailability of the witness as provided by this article through forfeiture by
wrongdoing.” TEX. CODE CRIM. PROC. art. 38.49. The record includes some
evidence that Clifton wrongfully procured Sanders’ unavailability for trial by
acquiescing to his mother’s actions in bribing Sanders to ensure she did not appear
for his trial.
On January 19, 2022, eight months before Clifton’s trial, Clifton and Viola
discussed whether Sanders would be coming to his trial. Viola, who had spoken to
Sanders, reported that Sanders told the State she was not coming. Viola told Clifton
57
that without Sanders’ testimony, the State “ain’t got nothing. They might as well
release you.” Five days later, Clifton told Viola to call Sanders because he wanted
to “see what she talking about.” When Sanders joined the call, Clifton told Sanders
that, despite what the State may have told her, she did not have to come to court and
testify against him. He told Sanders, “I just need you not to come and they will
dismiss on my trial date.” Sanders told Clifton that she told the State that she “wasn’t
a part of it,” and they told her that “it is still up to the judge.” Two days later, on
January 26, 2022, Clifton told a person named Jordan that he and Sanders had
nothing to talk about, and that he was “just trying to make sure the hoe [Sanders]
gonna do what she’s supposed to do so that I’m back on the other side.”
In April 2022, Viola and Clifton continued to discuss the need to keep Sanders
from testifying at trial because they believed that without her testimony, the State
would have no choice but to dismiss the case. Clifton directed Viola to “make sure
to let [Sanders] know don’t try to do no [indistinguishable].” He also told Viola,
“Hey try to call [Sanders] though. You know what I am saying.” Viola responded,
“I called. But you should be out.”
On August 18, 2022, one week before Clifton’s trial, Clifton called Viola
using another inmate’s SPN because he believed jail officials could not hear their
conversation. Clifton told Viola, “You need to umm get somebody to call [Sanders]
and make sure everything still . . . .” Viola interrupted Clifton and told him, “She
58
ain’t coming. She already said she is not coming.” Clifton said, “When? That was
a long time but you don’t know if they scared her or what.” Viola told Clifton that
Sanders was not coming to trial. Viola reported she had spoken to Clifton’s lawyer
and told him that Sanders was not coming to trial, that Clifton would not be going
to trial, and that Clifton would accept either probation or time served. Viola told
Clifton that his lawyer told her that Sanders told him she was not coming to trial, to
which Clifton remarked that his lawyer told him that Sanders stated the State would
be flying her to Houston, Texas the day before his trial was scheduled to start. Viola
told Clifton that Sanders “ain’t going to show up . . . they don’t even know where
that girl at.”
After voir dire on August 19, 2022, Viola told Clifton, “That girl ain’t coming
to court, I am going to call her.” Viola called Sanders and reported to Clifton that
the State had subpoenaed Sanders for trial and Sanders didn’t know if she was going
to trial. Clifton asked Viola if she told Sanders that if “she doesn’t come, they will
dismiss the case and then they can’t do nothing to her?” Viola responded, “Yeah.”
Viola called Sanders at Clifton’s request and left a message. Clifton urged Viola,
“Just call her back one more time. Try to call her back one more time. I don’t think
she had her on the phone because if they had her on the phone they would have gave
me another charge for violating a protective order.” Viola told Clifton that Sanders
59
had called her back twice and she indicated that Sanders was worried about
disobeying the subpoena.
Clifton told Viola that Sanders was lying when she said she received a
subpoena because his lawyer told him the State had not subpoenaed Sanders yet.
Clifton told Viola that the State was calling Sanders, but “they do not know where
she is.” Viola responded that she tried to call Sanders, but Sanders “ain’t answering
no more.” During the call, Clifton appears noticeably concerned that Sanders might
testify at trial, despite her previous representation she would not be attending.
On Sunday, August 21, 2022, the day after Sanders met with the State via
Zoom, Clifton called Viola again. Viola told Clifton she had spoken to Sanders for
two hours and she assured Clifton that Sanders was not coming to his trial. When
Clifton asked how she could be so sure Sanders would not testify, Viola said, “I
know she ain’t. I gave her baby $2,000 worth of clothes. [Sanders] said I am not
coming. I am definitely not coming. She said I will not be there.” Viola told Clifton
she had “mailed [the clothes] to [Sanders]. It’s going out, uh. We tried to send it
off yesterday, but she said the address was a PO box . . . so uh, we mailing it off
where it get there next day, so she will get it Tuesday,” August 23, 2022—the day
before Sanders was scheduled to fly to Houston for Clifton’s trial.
Viola’s statement indicates that Sanders accepted the clothes and assured
Viola she would not testify at Clifton’s trial. While Viola attempted to mail the
60
clothes to Sanders on Saturday, August 20, 2022, Viola was not successful and she
told Clifton she planned to mail them on Monday, August 22, 2022 for “next day”
delivery on Tuesday, August 23, 2022, one day before Sanders was scheduled to fly
to Houston for Clifton’s trial. Clifton did not object to Viola’s plan to bribe Sanders
to keep her from testifying at trial. Nor did he try to stop Viola from sending the
clothes to Sanders. Viola followed up with Sanders on Tuesday, August 23, 2022,
and Wednesday, August 24, 2022, to make sure she had received the clothes and
was not coming to trial. On August 24, 2022, the day before trial, Viola assured
Clifton that Sanders was not coming to trial. She told Clifton, “That girl told me
yesterday she ain’t coming. I am gonna to call her again and make sure she got her
baby clothes because they was there.”
During his calls to Viola, Clifton told her she needed to tell Sanders that if she
did not testify, the State would dismiss the case against Clifton, and there was
nothing the State could do to her if she did not comply with the State’s subpoena. It
is apparent from the calls that Clifton was concerned Sanders would come to
Houston to testify at his trial, despite her prior statements to the contrary.
This evidence, when viewed in favor of the trial court’s ruling admitting the
objectionable evidence under the forfeiture by wrongdoing doctrine, demonstrates
that Clifton knew about Viola’s plan to bribe Sanders with baby clothes to ensure
her absence trial, and he neither objected to the plan, nor make any attempt to stop
61
Viola from mailing the clothes to Sanders. Clifton tacitly agreed with Viola’s
decision to bribe Sanders. The trial court thus reasonably could have found from
this evidence that Clifton acquiesced to Viola bribing Sanders with baby clothes to
ensure her unavailability at Clifton’s trial. See TEX. CODE CRIM. PROC. art. 38.49(b)
(stating “[e]vidence and statements related to a party that has engaged or acquiesced
in wrongdoing that was intended to, and did, procure the unavailability of a witness
or prospective witness are admissible” to prove forfeiture by wrongdoing); see also
Rivera, 412 F.3d at 567 (stating “[a]ctive participation or engagement . . . is not
required” for forfeiture by wrongdoing to apply and noting dictionary defines
acquiescence as “the act or condition of acquiescing or giving tacit assent; agreement
or consent by silence or without objection”).
The trial court also could have reasonably concluded from the evidence that
Clifton repeatedly directed Viola to contact Sanders to make sure she would not
testify at his trial, that he instructed Viola to communicate certain information to
Sanders for that purpose, and that any acts Viola took to keep Sanders from testifying
at trial, including bribing Sanders, were done on Clifton’s behalf. See Olson, 668
F.2d at 429 (stating someone acting on defendant’s behalf to procure unavailability
of witness can operate to waive defendant’s hearsay objection).
We thus hold the trial court did not abuse its discretion by finding by a
preponderance of the evidence that Clifton wrongfully procured Sanders’
62
unavailability at trial and was thus barred by the doctrine of forfeiture by wrongdoing
from challenging the admission of Sanders’ out-of-court statements to Deputy Fitts
at the hospital (State Exhibit 10), to the State during the August 20, 2022 meeting
(State Exhibit 8), and to Clifton during the January 24, 2022 phone call (State Exhibit
4) based on the Confrontation Clause. See TEX. CODE CRIM. PROC. art. 38.49(a)(2)
(stating defendant “who wrongfully procures the unavailability of a witness or
prospective witness . . . forfeits [his] right to object to the admissibility of evidence
or statements based on the unavailability of the witness as provided by this article
through forfeiture by wrongdoing”); id. art. 38.49(b) ( “Evidence and statements
related to a party that has engaged or acquiesced in wrongdoing that was intended
to, and did, procure the unavailability of a witness or prospective witness are
admissible and may be used by the offering party to make a showing of forfeiture by
wrongdoing . . . .”).28 We similarly hold that the trial court did not abuse its
discretion by admitting State Exhibits 4, 8, and 10 for the same reasons.
In his fourth issue, Clifton argues the trial court abused its discretion by
admitting Sanders’ statements included in the report prepared by emergency medical
personnel (State Exhibit 55) and Sanders’ hospital records (State Exhibit 56) because
the admission of those statements violated his rights under the Sixth Amendment’s
28
Clifton does not dispute that the bribe of $2,000 worth of baby clothes was intended
to, and did in fact, procure Sanders’ unavailability at trial.
63
Confrontation Clause. See Paredes, 462 S.W.3d 514 (stating Confrontation Clause
precludes admission of witness’ testimonial statements unless witness takes stand to
be cross-examined or is unavailable and defendant had prior opportunity to
cross-examine witness).29 Clifton suggests that he is not barred from challenging
the admission of these statements based on the Confrontation Clause because the
statements were not “the subject of the inquiry at the forfeiture-by-wrongdoing
hearing.”
The doctrine of forfeiture by wrongdoing is a rule of estoppel designed to
prevent a defendant from benefiting from his own wrongdoing. See Colone, 573
S.W.3d at 264 (stating doctrine of forfeiture by wrongdoing based on principle that
tampering with witness “should . . . estop the tamperer from making any objection
based on the results of his own chicanery”); see also Gonzalez v. State, 195 S.W.3d
114, 117 (Tex. Crim. App. 2006) (stating doctrine of forfeiture by wrongdoing “is
based on common honesty and the maxim that no one shall be permitted to take
advantage of his own wrong”) (internal citations omitted). Thus, a defendant who
wrongfully procures a witness’ unavailability cannot later challenge admission of
that witness’ out-of-court statements because the witness is not available for cross-
29
Testimonial statements are statements that were made under circumstances that
would lead an objective witness to reasonably believe they would be available for
use at a later trial. Paredes v. State, 462 S.W.3d 510, 514 (Tex. Crim. App. 2015).
64
examination. Colone, 573 S.W.3d at 264–65.30 We can discern no logical reason to
allow a defendant to benefit from his own malfeasance simply because the out-of-
court statements of the unavailable witness are admitted during trial as opposed to
during the pre-trial Article 38.49 hearing. Moreover, Clifton has not directed this
Court to, and we have not found, any authority that would support such a proposition.
Appellate courts must affirm an evidentiary ruling if the ruling is supported
by the record and correct under any theory of law applicable to the case. See
Armendariz, 123 S.W.3d at 405; Osbourn, 92 S.W.3d at 538. The trial court’s
decision to overrule Clifton’s Confrontation Clause objections to State Exhibits 55
and 56 was correct because the out-of-court statements included in those exhibits
were made by Sanders, the witness whose unavailability Clifton wrongfully
procured, and thus, Clifton was barred from challenging the admission of those
statements based on the Confrontation Clause. See Armendariz, 123 S.W.3d at 405;
Osbourn, 92 S.W.3d at 538.
We overrule Clifton’s third and fourth issues.
30
A defendant can object to the admission of a witness’ out-of-court statements on
other grounds. See Colone, 573 S.W.3d at 266 (“Although the doctrine of forfeiture
by wrongdoing bars Appellant from challenging statements about his prior
commission of an aggravated robbery on the basis that those statements were made
out of court, that doctrine does not prevent him from challenging the statements on
the basis of their subject matter—that they describe an extraneous offense.”).
65
Post-Conviction Admonishments
In his fifth issue, Clifton argues the trial court failed to comply with Texas
Administrative Code Section 176.1 because the court did not orally admonish
Clifton that his possession of a firearm could lead to criminal charges. See TEX.
ADMIN. CODE § 176.1. The State responds that “nothing in the Administrative Code
specifies that that part of the admonishment be oral [and the] trial court gave
[Clifton] a written admonishment that informed him of the possibility of criminal
charges.”
In his sixth issue, Clifton argues the trial court erred by admonishing him that,
as a convicted felon, he could not possess ammunition because there is no Texas law
prohibiting a convicted felon from possessing ammunition. While Texas law
prohibits a convicted felon from possessing a firearm, the prohibition does not
extend to ammunition. Federal law, however, prohibits convicted felons from
possessing both firearms and ammunition. See 18 U.S.C. 922(g) (“It shall be
unlawful for any person . . . who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year[] to . . . possess in or
affecting commerce, any firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in interstate or foreign
commerce.”).
66
Even assuming, without deciding, that Section 176.1 of the Texas
Administrative Code creates an enforceable right, and that the trial court erred by
failing to admonish Clifton orally of his rights as a convicted felon under Section
176.1, and admonishing Clifton that he could not possess ammunition because there
is no Texas law prohibiting a convicted felon from possessing ammunition, we
cannot reverse on either basis unless Clifton was harmed by the error. See TEX. R.
APP. P. 44.2. All errors are subject to harmless error analysis under Texas Rule of
Appellate Procedure 44.2, except for a very narrow category of errors defined by the
United States Supreme Court as “structural” errors.31 Although a defendant does not
bear the burden to prove harm, he must still brief the question of harm and provide
31
Structural errors comprise a narrow class of cases involving the deprivation of
federal constitutional rights. See Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim.
App. 2005) (citing Johnson v. United States, 520 U.S. 461, 468–469 (1997)); see
also Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (structural error is error of
constitutional magnitude that “affect[s] the framework within which a trial proceeds
rather than simply an error in the trial process itself”). The United States Supreme
Court has defined the following errors as structural: (1) lack of an impartial trial
judge; (2) the unlawful exclusion of members of the defendant’s race from a grand
jury; (3) the denial of the right to self-representation at trial; (4) the denial of the
right to a public trial; (5) an instruction that erroneously lowers the burden of proof
for conviction below the “beyond a reasonable doubt” standard; and (6) the total
deprivation of counsel. See Johnson, 520 U.S. at 468–69; see also U.S. v. Davila,
569 U.S. 597, 611 (2013) (stating structural errors constitute “highly exceptional
category” of errors). The Texas Court of Criminal Appeals plurality decision in
Lake v. State, 532 S.W.3d 408 (Tex. Crim. App. 2017), indicates that a very narrow
class of non-structural errors may also be immune to a harmless error analysis. Id.at 411 (citing Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (“Except
for certain federal constitutional errors labeled by the United States Supreme Court
as ‘structural,’ no error . . . is categorically immune to a harmless error analysis.”)).
67
supporting arguments, substantive analysis, and appropriate citations to authorities
and to the record to avoid briefing waiver. See Reeves v. State, 420 S.W.3d 812, 816
(Tex. Crim. App. 2013) (“Neither the State nor the defendant has a burden to prove
harm.”); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (holding
defendant waived issue on appeal because he failed to address whether alleged error
was harmful); see also TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to contain
“a clear and concise argument for the contentions made, with appropriate citations
to authorities and to the record”).
Clifton neither argues he was harmed by the trial court’s failure to admonish
him orally that, as a convicted felon, his possession of a firearm could result in
criminal charges or by the trial court admonishing him that he could not possess
ammunition, nor does he assert that these alleged errors fit one of the very narrow
exceptions that are immune from the harmless error analysis. Clifton thus waived
these issues due to inadequate briefing. See Cardenas, 30 S.W.3d at 393; see also
Wilson v. State, 473 S.W.3d 889, 901 (Tex. App.—Houston [1st Dist.] 2015, pet.
ref’d) (holding defendant waived issue when he did not “argue that he was harmed
by” alleged error).
We overrule Clifton’s fifth and sixth issues.
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Assessment of Court Costs
In his seventh issue, Clifton argues the trial court erred by assessing him a
$185 state consolidated court cost and a $105 local consolidated court cost because
he committed the offense on June 3, 2019, and these consolidated courts costs are to
be assessed only for offenses committed on or after January 1, 2020. See TEX. LOC.
GOV’T CODE § 134.101. Clifton asks the Court to remand the case to the trial court
for a correct assessment of court costs.
The State agrees that the assessment of court costs is incorrect and asks the
Court to remand the case to the trial court for a correct assessment of court costs, but
only after affirming the conviction and sentence.32 See Authorlee v. State, No. 14-
20-00821-CR, 2022 WL 220267, at *4 (Tex. App.—Houston [14th Dist.] Jan. 25,
2022, pet. ref’d) (mem. op., not designated for publication) (affirming conviction
and sentence but remanding for proper assessment of court costs). Having overruled
Clifton’s challenges to his conviction and sentence, we agree with the State.
We therefore sustain Clifton’s seventh issue.
32
The State argues that the trial court’s alleged failure to inquire on the record about
Clifton’s ability to pay fines and costs is harmless. See TEX. R. APP. P. 44.2.
69
Conclusion
We affirm Clifton’s conviction and sentence and remand the case to the trial
court for a correct assessment of court costs.33 See id.Veronica Rivas-Molloy
Justice
Panel consists of Justices Goodman, Landau, and Rivas-Molloy.
Do Not Publish. TEX. R. APP. P. 47.2(b).
33
In his eighth issue, Clifton argues the trial court violated Article 42.15(a-1) of the
Texas Code of Criminal Procedure by imposing $290 in consolidated court costs
against him without first inquiring on the record about his ability to pay such costs
and he asks this court to remand the case to the trial court to conduct an on-the-
record inquiry. In his ninth issue, Clifton argues that the judgment incorrectly omits
the “Statute for Offense,” the bar-card numbers of Clifton’s defense counsel and the
two prosecutors, and an affirmative finding that Clifton committed a felony. He
further contends that the trial court failed to “check the box next to the statement
that the sentence is to be executed” and although the judgment gives him credit for
550 days of jail time to be used “toward incarceration, fine, and costs,” the judgment
does not explain how such credits are to be allocated.
Because we are remanding the case to the trial court to reassess the amount of court
costs, the trial court will have an opportunity to inquire on the record into Clifton’s
ability to pay costs and make any modifications to the judgment it deems necessary.
Therefore, we need not address issues eight and nine on appeal.
We note that the trial court may also take this opportunity to provide any further
admonishments to Clifton that the trial court deems appropriate.
70